Natural Rights on the Threshold of the Scottish Enlightenment. Gershom Carmichael

       What is true and fitting is the aim of my careful inquiry

      —Horace

      Edinburgh

      Printed by John Mosman and Partners, at the expense of John Paton, Bookseller and are for sale at his Premises in Parliament Square

      1724

      To the Most Noble and Illustrious Lord Whose ample Merits have Deserved So Well of his Country

      JAMES

      Earl of Hyndford, Viscount Nemphlear, Lord Carmichael of the same, Head of the Name and family of Carmichael, &c. &c. Together with his First-Born Son and Heir, the Noble Youth,

      JOHN

      Lord Carmichael Who gloriously emulates the Virtues of his Father and Grandfather:

      I, Gershom Carmichael,

      in gratitude and ready obedience, Give and dedicate This my humble service of adding supplements and observations to an outstanding work of a most noble author

Editorial Note

      In the last paragraph of his preface (pp. 19–20), Carmichael refers his readers to an appendix located at the end of his commentary (pp. 211–17) in which he sets out the propositions of moral science in what he takes to be their proper order. The chapter headings and the sequence in which the chapters are arranged in this edition for the most part follow the order which Carmichael proposes in his appendix. The organization of this edition therefore attempts to reflect the distinctive character and argument of Carmichael’s natural jurisprudence.

      Readers interested in consulting Carmichael’s Latin text may be guided by the note numbers. Carmichael himself numbered each of his annotations after the book, chapter, and section of Pufendorf’s On the Duty of Man and Citizen. We have followed this practice and appended Carmichael’s number to each of the annotations. Thus II.4.5.i appended to the note on pp. 141–42 refers to Carmichael’s first note to On the Duty of Man and Citizen, book II, chapter 4, section 5.

      The editors have included all the significant annotations that Carmichael published. Some smaller notes, which consist largely of cross-references and elementary explanations, have been omitted.

CHAPTER 1

       On Moral Philosophy, or the Science of Natural Jurisprudence

       Greetings to the generous reader ¹

      No one with the least tincture of learning can be ignorant of the fact that philosophy has been brought to a much happier condition in our own lifetime and in that of our parents than it had previously enjoyed. This has happened in two ways: philosophy has been purged of the absurdities of previous ages, and it has been enriched by outstanding improvements. And it has occurred not only in natural philosophy, where it has not escaped the attention of the general public that advances have been made by distinguished scientists which have contributed also to the refinement of the arts, but the other parts of philosophy have been no less happily cultivated. And of these none owes more to the achievements of the hundred years just past than Moral Science.

      This science had been most highly esteemed by the wisest of the ancients, who devoted themselves to its study with great care. It then lay buried under debris, together with almost all the other noble arts, until a little after the beginning of the last century, when it was restored to more than its pristine splendor (at least in that part of moral science which concerns the mutual duties of men and which is much the greater part because of the variety of cases that occur here) by the incomparable Hugo Grotius in his outstanding work The Rights of War and Peace.² And from that time the most erudite and celebrated scholars in Europe, as if aroused by the sound of a trumpet, have vied with one another in the study of this noblest and most useful branch of learning.

      For more than fifty years, scholars more or less confined their studies within the limits set by Grotius; inasmuch as some reduced his work to epitomes, others illustrated it with notes and commentaries, and others made various criticisms of it. I do not include in this company those famous Englishmen, Selden and Hobbes, since the one restricted himself to the so-called books of Noah and the teaching of the Hebrew doctors built upon them,³ while the other set out, not to illustrate the study of the law of nature, but to corrupt it.⁴ But then that most-distinguished man, Samuel Pufendorf, decided that something more should be attempted. By arranging the material in the work of Grotius in a more convenient order and by adding what seemed to be missing from it to make the discipline of morals complete, he produced a more perfect system of morals in those books that bear the title Of the Law of Nature and Nations.⁵ Subsequently, he reduced this system to a compendium in this elegant treatise to which we have devoted some little care of our own.⁶

      When this treatise was published, it began to be used for teaching purposes in the universities. And it was recognized by reasonable judges of these things that there is no other genuine philosophy of morals than the philosophy that elicits and demonstrates from evident principles founded in the nature of things those duties of men and citizens which are required in the individual circumstances of human life. And so the science of the law of nature, however different in appearance it might seem from the ethics which had long prevailed in the schools, was no different in aim and subject matter; it was the same subject, more correctly taught, and therefore better able to reach the goal which the other had sought with uncertain direction.

      For all writers on ethics had always professed that it was the science which would direct human actions to goodness, that is, to conformity with the law of nature or, as they commonly say in the schools, with the right dictates of reason.⁷ But by what means can any science direct human actions to conform with the law of nature unless it is by showing what that law prescribes, what it forbids, and what sanctions it employs to enforce its precepts, that is, what good awaits those who observe its precepts and what evil will ensue for those who neglect them? Whatever distinctions one may make between scholastic ethics⁸ and natural jurisprudence, one must not attribute them to the nature of moral science itself but to the spurious or genuine manner of teaching it. The same observation is made by the distinguished Titius in the prolegomena, section 48, to his own Observations on this treatise of Pufendorf’s.⁹

      Nor should it be objected that the subjects which form a great part of the scholastic ethics are not to be found in recent writings on the doctrine of natural law. For if one cuts out some of the things which appear too frequently in every part of scholastic philosophy, empty quibblings and arguments about words which ought to be excluded from the whole range of the sciences, if one also excises those things which can be defined only on the basis of supernatural revelation and must be left therefore to theology, if, finally, one sets aside those purely theoretical questions which are more appropriately treated today in pneumatology, what remains can easily find its place in the study of natural law, although it has been too much neglected until now by recent writers; and so it will be included in what follows.

       No one who cares sincerely about duty, and recognizes that a common rule of duty is given to all men, can doubt that every individual is obliged to seek some knowledge of this rule, and a more accurate knowledge must be sought by some in proportion to the talents they have been given and have